In The Supreme Court of the United States

Transcription

1 No. ================================================================ In The Supreme Court of the United States RONY ESTUARDO PEREZ-GUZMAN AKA RONNIE PEREZ-GUZMAN, v. Petitioner, JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PETITION FOR A WRIT OF CERTIORARI KEREN ZWICK CHARLES ROTH NATIONAL IMMIGRANT JUSTICE CENTER 208 S. La Salle St., Suite 1300 Chicago, Illinois kzwick@heartlandalliance.org croth@heartlandalliance.org August 24, 2017 Attorneys for Petitioner ERIC M. FRASER Counsel of Record HAYLEIGH S. CRAWFORD OSBORN MALEDON, P.A N. Central Ave., Suite 2100 Phoenix, Arizona efraser@omlaw.com hcrawford@omlaw.com ================================================================

2 i QUESTIONS PRESENTED Two provisions of the Immigration and Nationality Act (INA) dealing with asylum and reinstated removal orders directly conflict with one another. Under the asylum provision, Any alien who is physically present in the United States[,]... irrespective of such alien s status, may apply for asylum U.S.C. 1158(a)(1). The reinstatement section, meanwhile, authorizes the government to reinstate a prior removal order and provides that a noncitizen subject to reinstatement may not apply for any relief under [the INA]. 8 U.S.C. 1231(a)(5). In this enforcement action against a noncitizen triggering both sections, both the noncitizen and the government asked the United States Court of Appeals for the Ninth Circuit to resolve the conflict solely on the statutory text. Instead, the court of appeals invoked Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and deferred to an agency rule that addressed only one of the two provisions. The questions presented are: 1. Whether a court must defer to an agency s position under Chevron when the only ambiguity is a direct conflict between two statutory sections, which the agency has not addressed. 2. Whether the INA s asylum provision affords a noncitizen in reinstatement proceedings the opportunity to seek asylum in the United States.

3 ii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... v PETITION FOR A WRIT OF CERTIORARI... 1 OPINIONS BELOW... 1 JURISDICTION... 1 STATUTORY & REGULATORY PROVISIONS... 1 STATEMENT... 2 I. Legal framework... 3 II. Facts and procedural background... 6 III. The Ninth Circuit s decision REASONS TO GRANT THE PETITION I. The court of appeals decision misapplies Chevron and exceeds the constitutional bounds of agency deference A. Chevron requires a statutory gap or ambiguity; a conflict is neither B. Invoking Chevron because of a direct statutory conflict undermines the separation of powers and conflicts with congressional intent C. The Ninth Circuit compounded its error by deferring to an agency when the agency never squarely confronted the statutory conflict... 21

4 iii TABLE OF CONTENTS Continued Page II. Applying the normal tools of statutory construction, the INA s specific asylum provisions defeat the general reinstatement bar A. The asylum provision is explicit about who can seek asylum and who cannot, but the reinstatement bar has a number of implicit exceptions B. Applying the specific-general canon illustrates that the asylum provision should exclusively govern who may seek asylum C. International law requires the United States to offer asylum to refugees III. This case involves issues of exceptional importance and is an ideal vehicle for resolving the statutory conflict and clarifying persistent questions about Chevron s reach CONCLUSION APPENDIX Ninth Circuit Court of Appeals Opinion, August 31, App.1 Decision of the Board of Immigration Appeals, February 7, App.33 Order of the Immigration Judge, October 23, App.40

5 iv TABLE OF CONTENTS Continued Page Ninth Circuit Court of Appeals Order re Petitions for Rehearing, April 26, App.56 Ninth Circuit Court of Appeals Order re Supplemental Briefing, April 20, App.57 Ninth Circuit Court of Appeals Order re Supplemental Briefing, June 20, App.59 8 U.S.C App.61 8 U.S.C App.74 8 C.F.R App.99

6 v TABLE OF AUTHORITIES Page CASES Calla-Mejia v. Sessions, No , F.3d, 2017 WL (4th Cir. Aug. 9, 2017) Cazun v. U.S. Att y Gen., 856 F.3d 249 (3d Cir. 2017)... 33, 34 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)... passim Chew Heong v. United States, 112 U.S. 536 (1884) City of Arlington v. FCC, 133 S. Ct (2013)... 16, 19 Davis v. Mich. Dep t of Treasury, 489 U.S. 803 (1989) Encino Motorcars, LLC v. Navarro, 136 S. Ct (2016)... 8, 9, 12, 22 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)... 5, 30 Garcia v. Sessions, 856 F.3d 27 (1st Cir. 2017)... 30, 31, 33, 34 Garcia v. Sessions, 859 F.3d 406 (7th Cir. 2017) Gila River Indian Cmty. v. United States, 729 F.3d 1139 (9th Cir. 2013) Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016)... 20, 23 Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010) INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)... 28, 29 INS v. Errico, 385 U.S. 214 (1966)... 29

7 vi TABLE OF AUTHORITIES Continued Page INS v. St. Cyr, 533 U.S. 289 (2001) Jimenez-Morales v. U.S. Att y Gen., 821 F.3d 1307 (11th Cir. 2016) La. Pub. Serv. Comm n v. FCC, 476 U.S. 355 (1986) MacEvoy Co. v. United States, 322 U.S. 102 (1944) Marbury v. Madison, 1 Cranch 137 (1803)... 2, 19, 24 Matter of I-S- & C-S-, 24 I. & N. Dec. 432 (BIA 2008) Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) National Ass n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) Perez v. Mortgage Bankers Ass n, 135 S. Ct (2015) RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct (2012) Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) Scialabba v. Cuellar de Osorio, 134 S. Ct (2014)... 12, 15, 16, 17, 18 Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011)... 5 Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984)... 29

8 vii TABLE OF AUTHORITIES Continued Page Utility Air Regulatory Grp. v. EPA, 134 S. Ct (2014) Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013)... 5 Weinberger v. Rossi, 456 U.S. 25 (1982) Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991)... 10, 12, 21 CONSTITUTIONAL PROVISION U.S. Const. art. III, TREATY United Nations 1967 Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, 606 U.N.T.S , 30, 31 STATUTES 5 U.S.C U.S.C U.S.C U.S.C passim 8 U.S.C U.S.C passim 8 U.S.C

9 viii TABLE OF AUTHORITIES Continued Page 28 U.S.C U.S.C , 10, Refugee Act of 1980, Pub. L. No , 94 Stat ADMINISTRATIVE MATERIALS 8 C.F.R C.F.R C.F.R C.F.R C.F.R. 274a C.F.R passim 64 Fed. Reg (Feb. 19, 1999)... 7, 8, 22 Immigration Enforcement Actions: 2013 (Sept. 2014), 34 SECONDARY SOURCES James C. Hathaway, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW (2005) John Kendrick, Note, (Un)limiting Administrative Review: Wind River, Section 2401(a), and the Right to Challenge Federal Agencies, 103 VA. L. REV. 157 (2017) THE FEDERALIST NO. 78 (Alexander Hamilton)... 19

10 1 PETITION FOR A WRIT OF CERTIORARI Petitioner Rony Estuardo Perez-Guzman petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit OPINIONS BELOW The opinion of the court of appeals (App.1-32) is reported at 835 F.3d The decisions of the Board of Immigration Appeals (App.33-39) and the immigration judge (App.40-55) are unreported JURISDICTION The Ninth Circuit entered judgment on August 31, 2016, and denied a timely petition for rehearing and rehearing en banc on April 26, On July 7, 2017, Justice Kennedy extended the time for filing this petition until August 24, Petitioner invokes the Court s jurisdiction under 28 U.S.C. 1254(1) STATUTORY & REGULATORY PROVISIONS Pertinent statutory provisions from the Immigration and Nationality Act (INA) are the asylum provision, 8 U.S.C. 1158, and the reinstatement provision, 8 U.S.C They are reprinted in the appendix

11 2 to this petition. App (asylum); App (reinstatement). In addition, 8 C.F.R is reprinted at App STATEMENT This case concerns the proper balance between the judiciary s constitutional prerogative to say what the law is, Marbury v. Madison, 1 Cranch 137, 177 (1803), and judicial deference to executive agencies under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). It arises out of an immigration enforcement action against Petitioner Rony Estuardo Perez-Guzman (Perez), a Guatemalan seeking refuge in the United States. Perez s case implicates two conflicting provisions of the INA: the asylum provision in 208(a)(1), 8 U.S.C. 1158(a)(1), and the reinstatement provision in 241(a)(5), 8 U.S.C. 1231(a)(5). The asylum provision begins, Any alien who is physically present in the United States[,]... irrespective of such alien s status, may apply for asylum U.S.C. 1158(a)(1) (emphases added). The reinstatement provision, meanwhile, authorizes the government to reinstate a prior removal order and states that a noncitizen in reinstatement status may not apply for any relief under [the INA]. 8 U.S.C. 1231(a)(5) (emphasis added).

12 I. Legal framework. 3 Asylum. The United States offers asylum to noncitizens who are unable or unwilling to return home because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. 1101(42) (defining refugee ); 8 U.S.C. 1158(b)(1)(A) (granting the Secretary of Homeland Security and the Attorney General discretion to grant asylum to refugees). The specifics of asylum eligibility and procedure are spelled out in 208 of the INA, 8 U.S.C Section 1158(a)(1) begins with a broad grant of authority: Any alien who is physically present in the United States[,]... irrespective of such alien s status, may apply for asylum.... (Emphasis added). Section 1158(a)(2) places certain limitations on this grant, including a one-year time limit for applying from within the United States, a bar on successive applications absent changed circumstances, and an exception for noncitizens who may be removed to a safe third country under an international treaty. Id. 1158(a)(2)(A)- (D). Subsection (b) of 1158 mirrors the structure of subsection (a) it grants broad authority, and then qualifies it. Section 1158(b)(1) empowers the Attorney General and Secretary of Homeland Security to grant asylum to noncitizens who have been persecuted or fear persecution on the basis of race, religion, nationality, membership in a particular social group, or

13 4 political opinion. Subsection (b)(2), however, specifies that the Attorney General and Secretary may not grant asylum to a noncitizen who (1) has persecuted any person on the basis of his membership in a protected group; (2) has been convicted of a particularly serious crime ; (3) has committed a serious nonpolitical crime abroad; (4) is a danger to national security; or (5) who was firmly resettled in another country before coming to the United States. (None of these exceptions apply to Perez.) Under 1158(b) & (d), the Attorney General must establish regulatory procedures for applying for asylum, and may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1). Id. 1158(b)(2)(C). The Attorney General has not invoked this authority to address the interplay between 1158(a)(1) and 1231(a)(5). Reinstatement. Like the asylum provision, the reinstatement provision in 1231(a)(5) uses categorical language. Unlike 1158(a)(1), however, it lacks any specific qualification. It states without exception that if the Attorney General finds that a noncitizen has previously been removed, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under [the INA]. Id. 1231(a)(5) (emphasis added). Despite its categorical and mandatory language, the government and the courts have recognized several

14 5 limitations on reinstatement. First, even though 1231(a)(5) says that the prior order is reinstated once the Attorney General finds the noncitizen has been previously removed, the government treats reinstatement as discretionary. See Villa-Anguiano v. Holder, 727 F.3d 873, (9th Cir. 2013). Second, agency regulations, BIA decisions, and judicial precedent provide that the bar on any relief in 1231(a)(5) does not prohibit noncitizens in reinstatement status from applying for withholding of removal, see Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006); protection under Article 3 of the Convention Against Torture, 8 C.F.R (e), (c)(4); or U or T visas, see 8 C.F.R (c)(1)(ii); Torres- Tristan v. Holder, 656 F.3d 653, 660, 662 (7th Cir. 2011). See also App.18 ( [B]oth provisions are qualified in certain respects 1158 by various textual exceptions, and 1231(a)(5) by the government s practice and our precedent. ). Notwithstanding these exceptions, the government contends that the plain text of 1231(a)(5) bars noncitizens in reinstatement status from applying for asylum under Consistent with the government s position that the statutes are unambiguous, the agency has not promulgated a regulation addressing the interplay between 1158(a)(1) and 1231(a)(5).

15 II. 6 Facts and procedural background. In 2011, Perez fled to the United States to escape violence in his home country. App.4. He was stopped by border patrol agents and, two weeks later, removed using an expedited removal process. Id.; see also 8 U.S.C. 1225(b) (expedited removal). Under the expedited process, Perez never got to see an immigration judge, and he testified that border patrol agents never asked him if he feared returning to Guatemala. App.4. Six months later, Perez reentered the United States because he still feared for his life. App.5. The government immediately reinstated his prior order of removal under 1231(a)(5). Id. During the reinstatement proceedings, Perez sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Id. Only the asylum claim is relevant here. The interviewing asylum officer found that Perez had established that he reasonably fears torture if returned to Guatemala, and referred him to an immigration judge. App.2. But the immigration judge, and later the Board of Immigration Appeals (BIA), refused to consider Perez s asylum claim solely because he was in reinstatement status. 1 App.5; App n.1; App The immigration judge and BIA also denied Perez s withholding of removal and CAT claims. App.36-38; App.54. The parties agree that these claims must be remanded for reconsideration in light of intervening precedent, and the Ninth Circuit has so ordered. App.31.

16 7 Perez filed a petition for review with the United States Court of Appeals for the Ninth Circuit, arguing that the plain text of 1158(a)(1) entitles him to seek asylum. App The government argued that the plain text of 1231(a)(5) bars noncitizens in reinstatement status from seeking asylum. Id. Both parties asked the Ninth Circuit to rule on the statutory text alone; the government did not contend in its answering brief that its position should be given deference under Chevron. Dkt (Respondent s Br.) at Although the government did not claim that the agency had issued a regulation interpreting the interplay between reinstatement and asylum, shortly before oral argument the Ninth Circuit ordered the parties to submit supplemental briefs addressing 8 C.F.R (e). 2 App.57. The order directed the parties to address whether that regulation represents the agency s authoritative interpretation of the interplay between 8 U.S.C and 8 U.S.C. 1231(a)(5), and whether it is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). App.57. Neither the text of 8 C.F.R (e) nor the rulemaking adopting it (64 Fed. Reg (Feb. 19, 1999)) purports to reconcile the conflict between the text of the asylum and reinstatement provisions. This 2 The Ninth Circuit s order cited 8 C.F.R (e), which was recodified at and is substantively identical to 8 C.F.R Cf. App.8 n.2. This petition uses them interchangeably.

17 8 silence suggests that the agency never intended to answer that question, or that the agency was unaware of the conflict. The regulation itself states only that a noncitizen in reinstatement status who is found to have a reasonable fear of persecution or torture can be referred to an immigration judge for withholding of removal only. 8 C.F.R (e). It does not cite or discuss 1158(a)(1). This silence makes sense, given that the agency promulgated the regulation as part of an interim rulemaking establishing procedures for complying with the Convention Against Torture, as the title and introduction confirm. See 64 Fed. Reg. at 8478 ( Regulations Concerning the Convention Against Torture ). Remedies provided by the Torture Convention are narrower than asylum and are, by definition, available to many who would not qualify for asylum under the asylum provision by virtue of, for example, a criminal conviction. The interim rulemaking adopting 8 C.F.R (e) likewise does not address 1158(a)(1). It states, without explanation or citation, that noncitizens in reinstatement status are ineligible for asylum. They may, however, be entitled to withholding of removal under either section 241(b)(3) of the Act, or under the Convention Against Torture, or to deferral of removal under (a). 64 Fed. Reg. at Under this Court s precedent, a regulation does not receive Chevron deference if it lacks a reasoned explication. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016). Accordingly, Perez argued in

18 9 his supplemental brief that deference to 8 C.F.R was not appropriate because the agency had not provided any reasoning for this purported interpretation. Dkt. 74 (Petitioner s 2d Supp. Br.) at In its supplemental brief, the government doubled down on its plain-text position. It stated: Respondent respectfully suggests that resolution of this question is not necessary to disposition of the instant petition for review. As argued in Respondent s Answering Brief, asylum constitutes discretionary relief from removal, and the plain language of 8 U.S.C. 1231(a)(5) precludes all relief. Thus, the Court need not address the issue of whether Chevron deference to the agency s reasonable interpretation of an ambiguous statute is warranted. Dkt. 72 (Respondent s Supp. Br.) at 1. The government argued in the alternative that if the court found any ambiguity in 8 U.S.C. 1231(a)(5) concerning the availability of discretionary relief such as asylum, [then] the agency reasonably promulgated 8 C.F.R (e) to preclude asylum. Id. After argument, the Ninth Circuit entered a second sua sponte order for supplemental briefing. This time, the court ordered the parties to brief: (1) the impact of this Court s decision in Encino Motorcars on Perez s argument that 8 C.F.R should not be accorded Chevron deference ; and (2) whether Perez s arguments to that effect were timely under 28 U.S.C. 2401(a), as interpreted by Wind River Mining Corp.

19 10 v. United States, 946 F.2d 710 (9th Cir. 1991), among others. App As to the second of these questions, 28 U.S.C. 2401(a) states that a civil action against the United States must be brought within six years after the right of action first accrues. (Emphasis added.) In Wind River, the Ninth Circuit held that 2401(a) s limitations period begins to run at different times depending on whether the challenge to agency action is procedural or substantive. A challenge to a mere procedural violation in the adoption of a regulation or other agency action begins to run on the date the agency adopts the regulation or decision. Wind River, 946 F.2d at 715. The limitations period on challenges to the substance of an agency decision as exceeding constitutional or statutory authority, meanwhile, begins to run upon the application of the agency regulation or decision to the particular challenger. Id. All parties (including the government) agreed that Perez s Chevron arguments were substantive and therefore timely. App.19 n.6; see also Dkt. 85 (Respondent s 2d Supp. Br.) at 8-9 ( [Perez] is not raising a procedural challenge to the validity of the regulation.... Rather, Petitioner argues that 8 C.F.R (e) is substantively deficient because of alleged flaws in the agency s interpretation concerning whether asylum is available in reinstatement proceedings. ).

20 11 III. The Ninth Circuit s decision. On August 31, 2016, the Ninth Circuit ruled in the government s favor at Chevron step two, and found Perez s arguments against Chevron deference timebarred. App At Chevron step one, the court of appeals held that the asylum and reinstatement provisions conflict with each other, and then assumed that the conflict triggered deference under Chevron. App.12-13; App.18. It thus proceeded to treat 8 C.F.R (e) as the agency s controlling interpretation of the INA s conflicting asylum and reinstatement provisions. App In a footnote, the court brushed aside the government s position that deference was neither necessary nor appropriate. App n.8. The Ninth Circuit reasoned that it was not required to defer to the government s position (that the court should not defer to the government), because the government s plain-text argument was merely a convenient litigating position. Id. Treating 8 C.F.R (e) as the agency s authoritative interpretation of the INA s conflicting asylum and reinstatement provisions, the Ninth Circuit held that the agency s reading of 1231(a)(5) as controlling was entitled to deference. App The court of appeals also refused to consider Perez s argument that 8 C.F.R (e) did not warrant Chevron deference at step two because it lacked a reasoned basis. Despite all parties consensus that this argument was substantive, the Ninth Circuit ruled

21 12 that Perez alleged a procedural violation in the adoption of a regulation. App (citation omitted). It therefore held that Perez s argument was untimely under Wind River and 2401(a) because he made it more than six years after the 1999 rulemaking. App In support, it cited this Court s comment in Encino Motorcars that a basic procedural requirement[ ] of administrative rulemaking is that an agency must give adequate reasons for its decisions. App (quoting Encino Motorcars, 136 S. Ct. at 2125). Perez filed a petition for rehearing supported by three different amicus briefs. The Ninth Circuit ordered the Government to respond to the petition for rehearing and also to the arguments presented by the amici. On April 26, 2017, the Ninth Circuit denied rehearing. App REASONS TO GRANT THE PETITION This Court should grant review to clarify whether Chevron applies to unambiguous but conflicting statutes. In Scialabba v. Cuellar de Osorio, 134 S. Ct (2014), several Justices suggested that it does not, but the Court did not resolve that issue. The Court should answer that question now because it is creating confusion among courts in a way that implicates fundamental questions about separation of powers and the judiciary s role. If allowed to stand, the Ninth Circuit s expansive interpretation of Chevron will enable courts

22 13 to avoid ruling on a pure legal question under the guise of agency deference when even the agency does not claim the question falls within its interpretive authority. This Court should also find asylum available to individuals in reinstatement status. Eight Circuits have addressed the issue, and although each has found asylum unavailable, their inconsistent reasoning highlights the flaws in the agency s position. The asylum provision is an intricate scheme governing asylum eligibility, which was enacted to conform U.S. law with the Refugee Convention. The reinstatement bar, by contrast, is a blunt instrument lacking the comprehensive scheme found in the asylum provision, and subject to several implicit limitations. This Court should restore access to asylum for bona fide refugees who are improperly excluded under the agency s approach. I. The court of appeals decision misapplies Chevron and exceeds the constitutional bounds of agency deference. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), this Court set out the two-step framework for assessing whether a court must defer to an agency s interpretation of a statute it administers. At step one, a court must determine whether Congress [has] directly spoken to the precise

23 14 question at issue. Id. at 842. If the statute is unambiguous a question that should be answered after employing traditional tools of statutory construction, id. at 843 n.9 the agency must give effect to Congress s clear intent and apply the statute as written. Id. at 843. But if the statute is silent or ambiguous with respect to the specific issue, then the court proceeds to step two and determines whether the agency s answer is based on a permissible construction of the statute. Id. If both conditions are met, a court must defer to the agency s interpretation unless [it is] arbitrary, capricious, or manifestly contrary to the statute. Id. at 844. A. Chevron requires a statutory gap or ambiguity; a conflict is neither. The parties did not brief the issue of whether a statutory conflict qualifies as an ambiguity for Chevron purposes because both sides contended that the statutes are unambiguous, and because the government did not purport to resolve any statutory ambiguity. The Ninth Circuit ruled on deference anyway, and in doing so, assumed that the conflict between the asylum and reinstatement provisions created an ambiguity. App.12. That assumption is wrong. By its plain terms, the Chevron framework does not apply absent statutory ambiguity. Chevron, 467 U.S. at 843. That ambiguity may result from unclear language, or from a gap in the statute. Id.

24 15 Here, the court of appeals identified only one ambiguity: an apparent conflict between the two statutory provisions. App But as several members of this Court have recently highlighted, a direct statutory conflict is not an ambiguity. In Scialabba v. Cuellar de Osorio, 134 S. Ct (2014), this Court considered the meaning of 8 U.S.C. 1153, the INA section setting forth the priority rules for people seeking visas as beneficiaries of lawful permanent residents. See 134 S. Ct. at (Op. of Kagan, J.). The BIA contended that the statute was ambiguous and thus that the Court should defer to the agency s interpretation. Id. at Although a majority of the Court upheld the BIA s reading of 1153, only three Justices relied on Chevron. See id. at This group concluded that two Janus-faced clauses in 1153 created an ambiguity that triggered Chevron deference. Id. at The remaining six Justices disagreed that the statute was ambiguous and urged for a ruling on the plain text. Id. at Importantly, three of the Court s members specifically rejected the broad reading of Chevron now adopted by the Ninth Circuit in Perez s case. Id. at In a concurrence joined by Justice Scalia (and in relevant part by Justice Alito), the Chief Justice wrote, To the extent the plurality s opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong.... Direct conflict is not ambiguity, and the resolution of such a conflict is not

25 16 statutory construction but legislative choice. Id. at 2214 (Roberts, C.J., concurring); see also id. at 2216 (Alito, J., dissenting) (agreeing that [d]irect conflict is not ambiguity ). The fundamental premises justifying Chevron confirm that a statutory conflict is not an ambiguity. Chevron is rooted in a background presumption of congressional intent. City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013). That is, Chevron presumes that Congress intentionally delegated responsibility for resolving ambiguities in a statute to the administering agency because [t]he power of an administrative agency to administer a congressionally created... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. Chevron, 467 U.S. at 843 (citation omitted); cf. City of Arlington, 133 S. Ct. at 1876 (Breyer, J., concurring) (If Congress has not spoken unambiguously, the judge will ask whether Congress would have intended the agency to resolve the resulting ambiguity. ). Delegation is assumed where Congress has not directly spoken to the precise question at issue. Chevron, 467 U.S. at 842. In the case of statutory conflict, however, Congress has spoken to the precise issue; it just did so in opposing ways. If Congress enacted conflicting statutes with irreconcilable commands, then it did not delegate. Chevron is not a license for an agency to repair a statute that does not make sense. Scialabba, 134 S. Ct. at 2214 (Roberts, C.J., concurring).

26 17 Here, for example, Congress spoke to whether a noncitizen in reinstatement status can seek asylum. It has said both that any alien can apply for asylum irrespective of immigration status, 8 U.S.C. 1158(a)(1), and also that a noncitizen in reinstatement status cannot receive any relief under the INA. 8 U.S.C. 1231(a)(5). That is not an ambiguity from which Congressional delegation can be inferred. [W]hen Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Scialabba, 134 S. Ct. at 2214 (Roberts, C.J., concurring). 3 Indeed, neither Perez nor the government disputes that Perez s 3 National Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) does not suggest otherwise. Homebuilders involved inconsistent mandates in two different Congressional acts (the Endangered Species Act (ESA) and Clean Water Act (CWA)) administered by two different agencies. Id. at The two Acts contained apparently conflicting mandates concerning the factors an agency must consider when deciding whether to transfer permitting authority to the states. Id. at In light of their policy expertise, the agencies were able to harmonize the apparently conflicting text of each Act without negating either statute as applied to the case before the Court at the time. See id. at 665 ( This interpretation harmonizes the statutes by giving effect to the ESA s... mandate whenever an agency has discretion to do so, but not when the agency is prohibited from considering the ESA s mandate by the CWA.). Here, two provisions of the same Act appear mutually exclusive as applied to Perez he cannot simultaneously be permitted to seek asylum irrespective of [his] status under 1158 and be barred from seeking asylum under 1231(a)(5). Reconciling these conflicting mandates is a question of statutory interpretation for the courts, not a matter of agency expertise or policy choice.

27 18 circumstances trigger the text of both statutory provisions. The question, therefore, is not how to resolve statutory ambiguity, but rather how to resolve statutory conflict. The Ninth Circuit reasoned that the direct conflict between 1158(a)(1) and 1231(a)(5) created an ambiguity because Congress has not directly spoken to the precise question of how to reconcile the conflicting mandates. See App But that approach begs the question. Under the Ninth Circuit s view, a statutory conflict qualifies as ambiguity per se. Chevron s presumed Congressional delegation cannot stretch that far. In short, the court of appeals cited no authority justifying Chevron deference in the face of a statutory conflict between two provisions of the same statutory enactment. This Court should grant review to answer the important question of federal law left unresolved by Scialabba. B. Invoking Chevron because of a direct statutory conflict undermines the separation of powers and conflicts with congressional intent. This question deserves review because the Ninth Circuit s overbroad reading of Chevron violates separation-of-powers principles. The Constitution assigns the judicial department the task of interpreting the laws of Congress. U.S. Const.

28 19 art. III, 2 ( The judicial power shall extend to all cases, in law and equity, arising under this Constitution, [and] the laws of the United States.... ). The framers contemplated that [t]he interpretation of the laws is the proper and peculiar province of the courts and it belong[s] to [judges] to ascertain... the meaning of any particular act proceeding from the legislative body. THE FEDERALIST NO. 78 (Alexander Hamilton). By contrast, an agency literally has no power to act... unless and until Congress confers power upon it. La. Pub. Serv. Comm n v. FCC, 476 U.S. 355, 374 (1986). As noted above, Chevron presumes that Congress has delegated to an agency the necessary administrative powers to carry out programs entrusted to it. Chevron, 467 U.S. at 843 (observing that administering a program necessarily requires an agency to formulate policy and rules to fill in gaps left by Congress). Chevron s rule of deference was based on and limited by this congressional delegation. City of Arlington, 133 S. Ct. at 1881 (Roberts, C.J., dissenting). Filling in gaps or interpreting ambiguous terms in a statute Congress has charged the agency to administer falls within this delegated power. But [i]f two laws conflict with each other, the courts must decide on the operation of each. Marbury, 1 Cranch at 177. Resolving a direct and unambiguous statutory conflict is not administering the statute in light of the agency s policy expertise; it is saying what the law is. That question is emphatically the province and duty of the judicial department. Id.; see also Perez v. Mortgage Bankers

29 20 Ass n, 135 S. Ct. 1199, 1217 (2015) (Thomas, J., concurring) ( [T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws. ). If there were any doubt about this principle, Congress resolved it in the Administrative Procedure Act by placing in the hands of the reviewing court the responsibility to decide all relevant questions of law, [and] interpret constitutional and statutory provisions. 5 U.S.C. 706 (emphasis added); see also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151 (10th Cir. 2016) (Gorsuch, J., concurring) ( Congress vested the courts with the power to interpret... statutory provisions and overturn agency action inconsistent with those interpretations. Congress assigned the courts much the same job in the immigration field where we happen to find ourselves today. ) (citing 5 U.S.C. 706 and 8 U.S.C. 1252(a)(2)(D)). In Chevron itself, the Court took care to emphasize that the doctrine does not supplant the judiciary s final authority on issues of statutory construction. 467 U.S. at 843 n.9. The Ninth Circuit violated this basic principle by ruling that Chevron requires a court to defer to an agency when faced with a true statutory conflict between two unambiguous mandates. The Court should grant review to restore the proper balance between judicial deference and the separation of powers.

30 21 C. The Ninth Circuit compounded its error by deferring to an agency when the agency never squarely confronted the statutory conflict. Because it misread Chevron as applying to a direct statutory conflict, the court of appeals denied the parties the opportunity to have the judiciary say what the law is at Chevron step one. Then the Ninth Circuit compounded the problem by deferring to the agency at Chevron step two even though the agency had never addressed the statutory conflict at issue. At step two, Perez argued that 8 C.F.R (e) should not be accorded Chevron deference because it lacked a reasoned basis. The Ninth Circuit held this argument untimely under 28 U.S.C. 2401(a) and its precedent in Wind River Mining Corp. v. United States, 946 F.2d 710, (9th Cir. 1991). App As a result, the court of appeals deferred at step two to agency action that was unreasoned given that the agency did not perceive any statutory ambiguity to resolve after reasoned decisionmaking. This result cannot be squared with Supreme Court precedent requiring courts to judge the reasonableness of the 4 The parties agreed that Perez s argument was timely. App.19 n.6; see Dkt. 85 (Respondent s 2d Supp. Br.) at 8-9. Setting aside whether Wind River and its application are correct, see John Kendrick, Note, (Un)limiting Administrative Review: Wind River, Section 2401(a), and the Right to Challenge Federal Agencies, 103 VA. L. REV. 157 (2017), the Ninth Circuit s deference to unreasoned agency action demonstrates the danger of courts abdicating their responsibility to say what the law is.

31 22 agency s action based on the agency s explanation. See, e.g., Encino Motorcars, 135 S. Ct. at 2127 ( [W]e may not supply a reasoned basis for the agency s action that the agency itself has not given. ). The reasoned-decisionmaking requirement exists for a reason. Without an explanation of the agency s reasons, it is impossible to know whether the agency employed its expertise or simply pick[ed] a permissible interpretation out of a hat. Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1150 (9th Cir. 2013) (citation omitted). Nothing in the administrative record indicates that the agency intended for 8 C.F.R (e) to answer the question posed by this case. Neither the text of the rule itself nor the discussion section of the rulemaking cite or discuss 8 U.S.C. 1158(a)(1) (the asylum provision), and nothing acknowledges or purports to resolve the interplay between asylum and reinstatement. See generally 64 Fed. Reg In fact, the government has implicitly conceded that 8 C.F.R (e) was not meant to reconcile the reinstatement and asylum provisions. The government has suggested that the rulemaking s cursory statement about noncitizens in reinstatement status being ineligible for asylum merely reflects the agency s view that the plain text of 1231(a)(5) controls. Because the agency never cited or discussed 1158(a)(1), however, it appears that the agency was not even aware of the alleged ambiguity. Thus, there was nothing for the court of appeals to defer to because

32 23 the agency did not actually address the central question at issue. 5 The Ninth Circuit s decision to defer to unreasoned agency action deepens the separation-of-powers concerns raised by the Ninth Circuit s erroneous reading of Chevron because it further circumscribes the courts role in reviewing statutory conflicts and thus further insulates agency action from scrutiny. These compounded errors show that Chevron has become unmoored from its original principles and needs to be reanchored by this Court. The Ninth Circuit s eagerness to defer to the agency reflects a growing temptation to use Chevron to avoid difficult statutory-interpretation questions. This inclination is not unique to the Ninth Circuit. [T]he problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J., concurring). In light of the national importance of these issues, this Court s review is warranted. 5 The Ninth Circuit s insistence on ruling under Chevron step two in this case is all the more puzzling because the agency never claimed any ambiguity. The agency could not have engaged in a reasoned decisionmaking process to address an ambiguity or conflict the agency did not identify or even recognize.

33 II. 24 Applying the normal tools of statutory construction, the INA s specific asylum provisions defeat the general reinstatement bar. Where, as here, two statutory provisions conflict, the courts must decide on the operation of each. Marbury, 1 Cranch at 177. Applying the normal tools of statutory construction in this case, the court of appeals should have concluded that the general reinstatement provision cannot operate as a categorical bar to asylum for noncitizens in reinstatement status. A. The asylum provision is explicit about who can seek asylum and who cannot, but the reinstatement bar has a number of implicit exceptions. This Court s precedent requires statutory provisions to be considered holistically and in context. See Davis v. Mich. Dep t of Treasury, 489 U.S. 803, 809 (1989). Under this approach, several aspects of the asylum provision demonstrate that 8 U.S.C alone determines who may seek and be granted asylum. For example, both the asylum provision and the reinstatement provision use seemingly categorical language. But for good reason, courts have respected the asylum provision s broad text. Because of international-treaty obligations and humanitarian concerns (addressed below), courts have been extremely wary of creating exceptions to the asylum provision beyond the limited and express exceptions enacted by Congress.

34 25 By contrast, the reinstatement bar is judicially and administratively porous. As the court of appeals recognized, notwithstanding the prohibition on any relief, withholding of removal and CAT protection are available to individuals in reinstatement proceedings, as are U Visas exceptions created by courts and the executive branch, without any textual basis in the reinstatement provision itself. See App.14 (collecting citations). These exceptions caused the court of appeals to conclude that both provisions are qualified in certain respects 1158 by various textual exceptions, and 1231(a)(5) by the government s practice and our precedent. App (emphasis added). But respecting textual exceptions consciously inserted by Congress into the asylum provision is very different from the potpourri of judicial and administrative exceptions that already permeate the seemingly categorical bar of the reinstatement provision. Thus, as between the two, this history suggests that courts should use the reinstatement provision as the release valve for the tension between the provisions. The detailed text of 1158 is also instructive. Congress stated twice that any limit on asylum must be consistent with The asylum provision instructs that any alien may seek asylum and that such an individual may apply for asylum in accordance with this section. 8 U.S.C. 1158(a)(1). It further mandates that any additional limits on asylum must be consistent with this section. Id. 1158(b)(2)(C). This latter provision has particular significance because that

35 26 subsection supplies the Attorney General s authority to limit asylum, yet the agency never invoked that authority when promulgating 8 C.F.R The provision within 1158 relating to successive asylum applications shows how asylum and reinstatement should interact with one another. Although Congress generally prohibited successive asylum applications, see 8 U.S.C. 1158(a)(2)(C), the next subsection creates an exception that permits an individual to seek asylum a second time based on changed circumstances. Id. 1158(a)(2)(D). Because an unsuccessful asylum application will almost always result in a removal order, the only way to give meaning and effect to the successive-application provision is to recognize that some individuals may seek asylum even if they return following that removal order. That provision thus undermines the agency s interpretation of the reinstatement bar and demonstrates why it cannot stand. See Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014) ( [A]n agency interpretation that is inconsisten[t] with the design and structure of the statute as a whole does not merit deference. ) (citation omitted). The Ninth Circuit dismissed this text in a footnote, finding that it had no opportunity to consider this provision because Perez was a first-time applicant. App.30 n.10. But this overlooks the successiveapplication provision s role in the statutory structure and the court s obligation to construe the statutes to give meaning to all provisions. See Utility Air, 134 S. Ct. at 2442 ( Even under Chevron s deferential framework, agencies must operate within the bounds

36 27 of reasonable interpretation. And reasonable statutory interpretation must account for both the specific context in which... language is used and the broader context of the statute as a whole. ) (citations omitted). B. Applying the specific-general canon illustrates that the asylum provision should exclusively govern who may seek asylum. In addition to considering the entirety of the statutory text, it is a well-established principle of statutory construction that, in the course of giving meaning to all statutory provisions, the specific governs the general. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012); accord Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107 (1944). In RadLAX, this Court distinguished a detailed provision that spells out the [relevant] requirements and prescribed in great detail the relevant procedures, from a broadly worded provision. 132 S. Ct. at The same considerations apply here. The asylum statute is lengthy and detailed (2,440 words) but the reinstatement bar is a single, 87-word sentence whose relevance turns on the meaning of the word relief, which is undefined anywhere in the INA or in the regulations. Instead of taking the detailed nature of the asylum provision as evidence of that provision s specificity, the Ninth Circuit reasoned that the guarantee that

37 28 any alien may apply for asylum irrespective of status was undercut[ ] by a series of exceptions barring some noncitizens from asylum. App.14. But these exceptions support Perez s position. The statute creates limited, narrowly tailored exceptions, which demonstrate the asylum provision s specificity. For example, one of the limits on who may seek asylum requires a bilateral treaty obligation, see 8 U.S.C. 1158(a)(2)(A), and the other two can be excused for changed circumstances, id. 1158(a)(2)(D). Meanwhile, limitations on who may be granted asylum are rooted in the provisions of the United Nations 1967 Protocol Relating to the Status of Refugees (the Convention or Refugee Convention ), 19 U.S.T. 6223, 606 U.N.T.S Statutory limitations on asylum eligibility e.g., the bars for those who have been convicted of certain crimes, who are a danger to the community, or who have ties to terrorism generally relate back to the Refugee Convention. See Refugee Convention, Art. 1, 33(2). And the same is true for the bars for individuals who have persecuted others or committed serious nonpolitical crimes. Compare 8 U.S.C. 1158(b)(2)(A)(i), (iii), with Refugee Convention, Art. 1(F)(c), (b). In other words, unlike the reinstatement bar, the exceptions to asylum found within 1158 are detailed, specific, and rooted in the Refugee Convention. 6 6 The Ninth Circuit also bypassed the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the [noncitizen]. App.18 n.5; INS v. St. Cyr, 533 U.S. 289, 320 (2001) (quoting INS v. Cardoza-Fonseca, 480 U.S.

38 29 C. International law requires the United States to offer asylum to refugees. The United States treaty obligations confirm that the reinstatement bar cannot categorically prevent refugees from seeking asylum in this country. Under the Charming Betsy doctrine, a statute ought never to be construed to violate the law of nations if any other possible construction remains. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). The Charming Betsy doctrine recognizes the firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); accord Weinberger v. Rossi, 456 U.S. 25, 32 (1982); Chew Heong v. United States, 112 U.S. 536, 550 (1884). Congress adopted the original version of the asylum provision as part of the Refugee Act of 1980, Pub. L. No , 208(a), 94 Stat. 102, which sought to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees. INS v. Cardoza-Fonseca, 480 U.S. 421, (1987). The asylum provision therefore must be read in light of the Refugee Convention it is meant to effectuate. 421, 449 (1987)). The immigration lenity canon is essential to ensure that interpretations are consistent with the statute s humanitarian purpose. INS v. Errico, 385 U.S. 214, 225 (1966).